Petition for Writ of Certiorari — Dewey Steven Terry, Petitioner v. Phillip Earley, et al.

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DEWEY STEVEN TERRY,

UNITED STATES COURT OF APPEALS

FOR THE NiNTH CIRCUIT

APPENDIX A

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 132018

MOLLY C. DWYER, CLERK

US. COURT OF APPEALS

DEWEY STEVEN TERRY,

Plaintiff-Appellant,

No. 17-15184

D.C. No. 3:13-cv-01227-EMC

Northern District of California,

San Francisco

PHILLIP EARLEY; et at.,

Defendants-Appellees.

Before:

CANBY, TROTT, and GRABER, Circuit Judges.

The panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

Terry's petition for panel rehearing and petition for rehearing en banc

(Docket Entry No. 32) are denied.

No further filings will be entertained in this closed case.

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Case: 17-15184, 11/21/2017, ID: 10662435, DktEntry: 3.-1, Page 1 of 3

NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

NOV 21 2017

FOR THE NINTH CIRCUIT

DEWEY STEVEN TERRY,

Plaintiff-Appellant,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 17-15184

D.C. No. 3:13-cv-01227-EMC

MEMORANDUM*

PHILLIP EARLEY; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Submitted November 15, 2017

Before:

CANIBY, TROTT, and GRABER, Circuit Judges.

Dewey Steven Terry, a California state prisoner, appeals pro se from the

district court's summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants were deliberately indifferent to his health and safety. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Wallis v. Baldwin, 70

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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Case: 17-15184, 11/21/2017, ID; 10662435, DktEntry; 31-1, Page 2 of 3

F.3d 1074, 1076 (9th Cir. 1995). We affirm.

The district court properly granted summary judgment on Terry's Eighth

Amendment claim because Terry failed to raise a genuine dispute of material fact

as to whether "he himself [wa]s being exposed to unreasonably high levels" of

asbestos and lead. Helling v. McKinney, 509 U.S, 25, 35-36 (1993) (setting forth

evidence needed to prevail on a claim of deliberate indifference based on exposure

to second-hand smoke); see also Wallis, 70 F.3d at 1077.

The district court properly granted summary judgment on Terry's state law

claims because Terry did not comply with the claim-presentment requirement of

the California Government Claims Act. See Cal. Gov't Code § 911.2; Ellis v. City

of San Diego, Cal., 176 F.3d 1183, 1190 (9th Cir. 1999); California v. Superior

Court (Bodde), 90 P.3d 116, 122 (Cal. 2004).

The district court did not abuse its discretion in denying Terry's motion to

alter or amend the judgment because Terry failed to demonstrate any grounds for

such relief. See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003)

(setting forth standard of review and requirements for granting relief under Fed. R.

Civ. P. 59(e)).

Appellee Young's request to strike settlement documents attached to Terry's

filings, set forth in his answering brief, is granted. The Clerk of Court is hereby

directed to strike Exhibit 1 to Docket Entries 10, 12, and 29 because all three of the

17-15184

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Case: 17-15184, 11/21/2017, ID: 10662435, DktEntry: 31-1, Page 3 of 3

exhibits contain confidential settlement information.

AFFIRMED.

17-15184

DEWEY STEVEN TERRY,

UN ITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX B

Case 3:13-cv-01227-EMC Document 140 Filed 04/25/18 Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DEWEY STEVEN TERRY,

Plaintiff- Appellant,

No. 17-15184

D.C. No. 3:13-cv-01227-EMC

U.S. District Court for Northern

California, San Francisco

PHILLIP EARLEY; et al.,

MANDATE

Defendants Appellees.

The judgment of this Court, entered November 21, 2017, takes effect this

date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Rebecca Lopez

Deputy Clerk

Ninth Circuit Rule 27-7

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

450 Golden Gate Avenue

San Francisco, CA 94102

APPENDIX C

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 1 of 27

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEWEY TERRY,

Plaintiff,

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BRAD SMITH, et at.,

Docket Nos. 106, 107

Defendants.

INTRODUCTION

This prose prisoner's civil rights action is now before the Court for consideration of two

defense motions for summary judgment. For the reasons discussed below, the motions will be

granted and judgment entered against Plaintiff.

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ORDER GRANTING DEFENDANTS'

MOTIONS FOR SUMMARY

JUDGMENT

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Case No. 13-cv-01227-EMC

BACKGROUND

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Procedural History

The amended complaint alleged that Defendants required Dewey Terry to clean and work

in an area containing lead paint and asbestos in May and early June 2012. The amended complaint

also alleged that defendants Philip Earley and Gary Loredo "fail[ed] to disclose/enter onto the

Worker's Compensation forms exposure to Asbestos," and that failure "resulted in a 'fraudulent

and/or Incomplete Worker's Compensation Claim." Docket No. 11 at 4.

This action was one of six actions which asserted claims based on the alleged asbestos and

lead paint exposure during the cleaning of the mattress factory at San Quentin State Prison in May

and early June 2012. The six related actions were Dewey Terry v. Smith, C 13-4102 EMC; Markee

Carter v. Smith, No. C 13-4373 EMC; Evert Spells v. Smith, No. C 13-4102 EMC; Norman

Hirscher v. Smith, 14-340 EMC; Richard Arnold v. Smith, No. C 13-4456 EMC; and Lynn Beyett

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 2 of 27

v. Smith, No. C 14-3153 EMC. The six prisoner-plaintiffs appeared to be coordinating their

efforts, as their pleadings, requests, oppositions, and exhibits were similar. On the other side, the

Defendants were being represented by the Law Office of Nancy E. Hudgins, except for Jeremy

Young, who was represented separately by attorney Kenneth Williams. Defense motions for

summary judgment were filed in five of the six cases, although not in the Arnold case because that

proceeded at a slower pace.

The Court chose one case (Carter), went through the evidence in that case, and issued an

order granting in part and denying in part Defendants' motion for summary judgment. The Court

then sent to the parties in all six cases the lengthy order in the Carter case, explaining that the

ruling in Carter was not technically dispositive of the motions for summary judgments in each of

the other related cases, but that the ruling showed the Court's evaluation of the evidence and

provided enough guidance for the parties in all the cases to have a good sense of their relative

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positions for settlement purposes. The Court then referred all the cases to a magistrate judge for

settlement proceedings. Four of the actions settled, leaving this action and Arnold v. Smith, No.

13-cv-4456 EMC, remaining for adjudication.

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Statement of Facts

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The following facts are undisputed unless otherwise noted.

The events and omissions giving rise to this action occurred in May and early June 2012

("the relevant time"). Mr. Terry presents evidence that the cleaning work began on May 9.

Docket No. 11 at 3. The parties agree that the work stopped on June 6. Id.; Docket No. 114 at 66-

67 (worker's compensation form signed by G. Loredo and P. Earley states: "From 5/29/2012 to

6/6/2012, inmate Terry was scraping, sanding, and powerwashing potential lead based paint off

the walls and windows of the mattress factory").

At the relevant time, Mr. Terry was a prisoner at San Quentin State Prison and worked in

the California Prison Industries Authority ("CALPIA") mattress and bedding factory at San

Quentin (the "mattress factory"). He was 52 years old. Docket No. 11 at 38. Defendants worked

for CALPIA. Joe Dobie was the temporary supervisor of the mattress factory. Philip Earley was

initially the factory manager of the mattress factory, and then was assigned temporarily to Folsom

Case 3:13-cv-01227-EMC Document 128 Piled 12/02/16 Page 3 of 27

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State Prison. Gary Loredo was the superintendent for several CALPIA factories, and also was the

acting factory manager of the mattress factory while Mr. Earley was at Folsom. Jeremiah Young

was a supervisor at the mattress factory, but was reassigned to work in a different location during

the relevant time.

In May to June each year, CALPIA factories throughout California cease production as

The Cleaning of the Mattress Factory

they prepare to take annual inventory at the end of the fiscal year. When the factories cease

production, inmate-workers clean the work areas. Cleaning operations in the mattress factory

include removing the cotton dust from the walls, stripping the floor, and repainting the floor and

the lines on the floor of the factory. Every couple of years, the cleaning process also entails

repainting the factory walls, which includes first removing the dust from the walls to be painted.

See Docket No. 114 at 59. Approximately 40 or 50 inmates were on the crew that cleaned the

mattress factory in 2012. See Docket No. 1 at 37; Docket No. 11 at 20.

In May 2012, Mr. Griffin, the superintendent of the mattress factory, informed Mr. Earley

that he intended to have the factory walls painted. Mr. Earley approved the decision. Mr. Griffin

ordered paint and coordinated with Jeremy Young to have the walls painted in conjunction with

the cleaning of the mattress factory. Mr. Dobie assisted with the cleaning and painting

preparations. Docket No. 114 at 59-60.

On May 23, Mr. Earley appointed Mr. Dobie to oversee the mattress factory through

inventory. Docket No. 32-10 at 2; see also Docket No. 1 at 27.

On May 23 or 24, Mr. Dobie held a meeting with the inmates, and explained that they

would be cleaning and painting the mattress factory for the next two weeks. See Docket No. 11 at

41-42; see also Docket No. 1 at 27. (Defendants present evidence that the event occurred on May

29. Docket No. 32-10 at 2.) Mr. Dobie explained that the plan was to remove the paint from the

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bottom section of windows and areas on the walls where paint was peeling and blistering, and that

portions of the floor would be repainted. He told the inmates to check out putty knives, scrapers

and wire brushes from the tool room to remove paint from the windows and walls. Inmates also

used a compressed air hose to remove cotton dust that had collected on the walls and surfaces

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 4 of 27

inmates using the power washer disturbed wrapping that was on the ceiling pipes.. Mr. Terry

states that the wrapping contained asbestos. According to Mr. Terry, when the inmates washed

the ceiling and pipes, the pipe "insulation broke free upon contact with the hot water washer

disbursing both wet and dry particles throughout" the factory onto the inmates, including Mr.

Terry. Docket No. 114 at 2. The water from the power washer and the floor-stripping solvents

combined in "large pools on the floor," and mixed with the paint chips. Id. Inmates "waded

through" and "inhaled" the materials "for approximately ten days." Id.

Mr. Terry presents evidence that indicates the power washing started no earlier than May

23. See Docket No. 11 at 19 (Terry's inmate appeal states that Dobie was first assigned to

supervise on May 22, and that the inmates' exposure to hazardous materials started on May 24);

Docket No. ii at 6 (Terry's complaint alleges that Dobie acquired the power washer on or about

May 25); Docket No. 33-1 at 9 (Terry's "affidavit of facts" stating that Dobie acquired power

washer on or about May 25). Using May 23 as the starting date, and taking into account that May

28 was the Memorial Day holiday and Mr. Terry's statement that the inmates had a Monday-

Thursday work week, the power washing went on for eight days: May 23 (Wednesday), May 24

(Thursday), May 29 (Tuesday), May 30 (Wednesday), May 31 (Thursday), June 4 (Monday), June

5 (Tuesday), and the morning of June 6 (Wednesday).

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The parties disagree about the use of the power washer. Mr. Terry presents evidence that

around the mattress factory to prepare for painting. Docket No. 32-10 at 2-3.

Defendants present evidence that the power washer was in use only for a couple of days, at

the most. In a memo dated June 7, Jeremy Young (whose job title was "industrial supervisor,

mattress & bedding"), wrote that, on June 4, he received instructions from his "immediate

superior, Joe Dobie" to "pressure wash from ceiling to floor" and to cover the electrical boxes and

junctions so that no water would interfere with the electrical wires or connections. Docket No. 59

at 5. Mr. Young further stated in the memo that he "frequently checked in with [his] superior"

apparently referring to Joe Dobie "to make sure we were proceeding according to his plans. Joe

Dobie stated multiple times throughout the day that I had to make sure that Inmates have N95

dus[t] mask[s] on. He emphatically stated, in regards to the rationale for the dust masks; 'There

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 5 of 27

could be lead in the paint that they are scraping off of the walls and windows." Docket No. 59 at

5.1 According to Mr. Young's memo, Mr. Dobie told him before the end of the day (on June 4) to

continue with the same procedures the next day, i.e., scrape the paint off the walls and windows.

Id. That same memorandum noted that, on June 5, the inmates' "workload consisted of scraping,

sanding, and pressure washing walls and floor." Id. Mr. Young's memo did not mention asbestos.

1 See id. at 5-6.

On the morning of June 6, Luu Rogers, who worked in the CALPIA maintenance division,

walked through the mattress factory and observed that paint had been removed from the factory

walls and windows, and that the ceiling had been pressure-washed, including the asbestos

wrapping on the overhead steam pipes. Docket No. 114 at 20. Mr. Rogers contacted Mr. Loredo

and advised him of the potential lead and asbestos hazard in the building. Cleaning and painting

operations were immediately halted on the morning of June 6. Docket No. 114 at 20-24 (Mr.

Rogers' June 6 and June 7 memos); Docket No. 32-1 at 3.

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Photos of the factory show an open and airy workspace with a ceiling at least 12 feet high,

and a limited number of pipes running near to the ceiling. The pipes are covered with what

appears to be insulation wrapped with tape, although there is no visible writing on the pipe

covering. The portions of the pipe covering that are disturbed are quite limited in number and the

disturbed areas are quite confined in size. For example, no disturbed area appears to be bigger

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than about six inches long. See Docket No. 90 at 21-28; Docket Nos. 90-1, 90-2, 903.2 The

disturbances on any particular pipe appear few and far apart.

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CALPIA commissioned Earthshine Consulting, Inc., an environmental hazard company, to

test for lead and asbestos. On June 8, 2012, Earthshine collected samples from floor debris in four

Post-Shutdown Testing And Remediation At The Mattress Factory

A manufacturer's brochure for an N95 mask states: "Do not use for gases and vapors, oil

aerosols, asbestos, arsenic, cadmium, lead," and certain other substances. Docket No. 59 at 52.

According to Mr. Terry, the photos were taken during a site visit on November 2, 2015, Docket

No. 90 at 20, and reflect the way the mattress factory appeared after the cleaning operation.

Docket No. 107-2 at 8-9, 19. Three photos have humans in them, which enables the viewer to

have a sense of the size of the factory and damage to the pipes. See Docket No. 90-1 at 6; see also

Docket No. 90 at 22, 23.

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 6 of 27

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locations in the factory to conduct a preliminary test for the presence of lead and asbestos. No

asbestos was detected in those samples. Docket No. 32-1 at 3; Docket No. 32-2 at 1-4.

On June 27 or 29, 2012, Earthshine took additional samples from around the mattress

factory. Docket No. 32-1 at 3-4; Docket No. 32-2 at 5-28. Those samples showed asbestos in the

mastic adhesive under the floor tiles in the factory supervisors' office and trace amounts of

asbestos in the glazing putty around the office windows, but it is undisputed that no inmates

scraped paint in the office. Both materials were noted to be in "good" condition. Docket No. 32-1

at 3. Earthshine noted that the steam pipes along the factory ceiling were not tested but that the

pipe wrapping was assumed to contain asbestos and was in "good" condition. Id. at 3-4. The

report did not mention whether the pipe wrapping had been damaged by the pressure washer as

claimed by Mr. Terry. The report listed the asbestos in the mastic adhesive and glazing putty as

nonfriable, and listed the presumed asbestos in the pipe wrapping as friable. Docket No. 32-2 at

10. According to Defendants, the lead-detection samples taken showed that only the outside of the

swing-out windows of the factory had elevated lead levels. See Docket No. 32-1 at 3. That,

however, does not mean that there had not been lead paint elsewhere, as the workers had been

scraping the paint for many days before the testing was done and the lead test results from the

June 8 sampling of floor debris are not in the record.

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The mattress factory was cleaned by Performance Abatement Services beginning on

July 5, 2012. Following the cleaning and remediation, Performance Abatement Services

confirmed that the factory passed standards for lead presence. The mattress factory resumed

operations in Fall 2012. See Docket No. 32-2 at 30-32; Docket No. 32-9 at 4.

Mr. Terry presents evidence that prison officials generally were on notice of the presence

Defendants' Awareness Of The Risks

of asbestos in the prison. He presents a CALPIA "worksite orientation" pamphlet for "new

ernployee/CDCR staff/outside personnel" that had general workplace information, including this

caution about asbestos: "Asbestos covered pipes are located throughout the PIA complex. DO

NOT DISTURB these pipes. If you see a problem, notify a supervisor." Docket No. 114-1 at 10-

11. The pamphlet is undated, but there are markings indicating that it was in use in 2006, id. at 10,

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 7 of 27

long before the relevant time in this action. Mr. Terry also presents a copy of a "San Quentin

Warden's Bulletin" regarding the "annual asbestos notification" that was directed to "all staff' and

suggested there was asbestos-containing material somewhere in the prison; however, the bulletin

is dated January 14, 2013, after the relevant time period. Docket No. 59 at 28; Docket No. 114-1

at 9.

The parties disagree whether Mr. Dobie and Mr. Young knew of the presence of lead and

asbestos in the mattress factory at the relevant time. Mr. Terry presents a declaration made under

penalty of perjury from inmate Lynn Beyett, that he (Mr. Beyett) alerted Mr. Dobie to the

presence of lead paint and asbestos on May 23 or May 24:

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I went up to Joe Dobie and I said, "You do know all the paint on the

windows and walls are "Lead Paint, and the pipes are wrapped in

"Asbestos."?? He told me not to worry about it, he is running this

shop & Lead Paint and Asbestos would not hurt anyone. I said,

"Mr. Dobie, I've been in the building trade for over Thirty (30)

years, and we can't just scrap & chip or sand "Lead Paint", or power

wash those pipes, as it will burst the Asbestos loose."

I said, "There is Federal Laws that mandate we be trained and wear

protective suits and have a breather at the very least. Joe Dobie,

then told me, "It's none of my business, I am the boss." I then

walked over to the maintenance shop to talk it over with our regular

supervisor Mr. J. Young. I told Mr. Young of the whole

conversation I had with Joe Dobie, at which time Mr. Young said, "I

know about it because I told Joe Dobie it's illegal and very wrong to

make inmates work with no training on lead paint & asbestos

removal, and no protective gear & Breather respirators. I said,

"Well what do we do?" Mr. Young said, "Document everything or

don't do it." I said, He (Joe Dobie) told every one to either do what

he says, or go home & refuse. I can find replacements." Mr. Young

said, You have to do what Dobie says, or you will be fired most

likely. You know whatever Dobie says, it's the same as coming

from the plant manager Phil Earley."

Phil Earley had already

told everyone, "You do what Dobie tells you to do. It's the same as

me telling you, because I have 600 men who want a job over in west

block. I will replace everyone of you if I have too."

...

Docket No. 114-1 at 15-16 (errors in source).

There is no evidence that Mr. Earley or Mr. Loredo actually knew of asbestos or lead paint

in the mattress factory. Mr. Terry presents evidence that they received training in many topics, but

does not demonstrate that any of that training actually pertained to lead paint or asbestos detection.

Mr. Earley states: "I was generally aware that some of San Quentin's facilities contained lead

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 8 of 27

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paint or asbestos, but I never received training concerning identification of those materials nor

where they were located." Docket No. 32-1 at 3. Mr. Loredo states that he was "aware that some

of the steam pipes running along the walls and ceilings of the furniture factory were wrapped in

asbestos material because the pipes were marked 'Asbestos.' But, I had no information

concerning the presence of asbestos or lead paint in the mattress factory." Docket No. 32-3 at 2-3.

Mr. Loredo also generally was aware that San Quentin executive staff issued notices regarding

asbestos at the prison, but he never received specific information concerning its presence in the

mattress factory. See id. at 3.

After factory operations were halted on June 6, the inmates were tested for lead exposure.

The Testing Of Inmates And Preparation Of Workers' Compensation Forms

Mr. Terry's blood test came back with normal results. Docket No. 32-7 at 6. His June 8, 2012

blood test report lists a normal reference range of "0.0-10.0 mcg/dL" (i.e., micrograms per

deciliter) for lead in the blood, and lists Mr. Terry as being within range with a lead level of less

than 2.0 mcgldL. Id.

No test to measure asbestos exposure was done on Mr. Terry, and there is no evidence that

such a test exists for recent exposure to asbestos. See Docket No. 1-1 at 4 (September 13, 2012

memorandum to Mr. Terry from the California Correctional Health Care Services department

denying his request for a test for asbestos exposure; "[u]nfortunately, there is no 'testing' available

for asbestos exposure in your circumstance. In general, if there are any effects arising from

asbestos exposure they are very slow to develop and may take decades to manifest to a degree to

permit a test and diagnosis of the condition.")

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A worker's compensation fund claim was submitted for Mr. Terry. See Docket No. 114 at

2, 66-67; Docket No. 11 at 33. On the portion of the form where the claimant is to state the

"specific injury/illness and medical diagnosis if available," prison officials typed in "possible

exposure to lead." Docket No. 114 at 66. The form was signed by Mr. Loredo as the employer

representative. Id. at 67. Mr. Terry states that he did not fill out the form, although he does not

dispute that he signed it. Docket No. 32-8 at 55-56 (Terry 7/24/14 Depo. Transcript). Mr. Terry's

worker's compensation fund claim was rejected by the State Compensation Insurance Fund

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 9 of 27

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because of a lack of medical evidence that Mr. Terry sustained any injury as a result of the

possible lead exposure, but noted that he could inform the Fund if he developed any injury due to

the exposure. Docket No. 11 at 34. The rejection letter notified the recipient of his right to

disagree with the decision, and provided contact information "[if] you want further information on

your rights to benefits or disagree with our decision." Id. There is no evidence that Mr. Terry

took any further steps with regard to a worker's compensation claim.

Mr. Terry filed a claim with the California Victim Compensation and Government Claims

Board. That claim asserted a claim for lead and asbestos exposure, but did not mention any

intentional concealment or fraud in the preparation of the worker's compensation claim form or

any other problem with the preparation of the worker's compensation claim form. See Docket No.

33-1at6-10.

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Mr. Terry attributes eye problems, breathing problems, chest pains and headaches to his

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exposure to asbestos. Docket No. 11 at 3-4. Mr. Terry has no medical training and offers no

competent evidence to prove a causal connection between any of his current health issues and

exposure to lead paint or asbestos. See Docket No. 107-2 at 5.

Medical Information

Defendants present a declaration from a medical expert, Brad Piatt, M.D., who obtained his

A.B. in biochemistry and completed post-graduate work in biochemistry at U.C. Berkeley,

obtained his medical degree at Vanderbilt University, and now is a board-certified radiologist.

Docket No. 107-3 at 1. Dr. Piatt has "obtained substantial experience with asbestos and asbestos

related medical illnesses during the analysis of diagnostic imaging for over a thousand patients

being evaluated for asbestos exposure in order to determine the presence, type and extent of

disease." Id. Dr. Piatt opines "to a reasonable medical certainty" that, "assuming Mr. Terry was

exposed to asbestos as he has alleged, he has not and will not sustain any injury as a result." Id.

Dr. Piatt states that "[a]sbestos-related illness only develops after chronic, prolonged exposure to

significant concentrations, most diseases occurring years or decades after substantial exposure."

Id.at 3. Because of the long latency period for asbestos-related illnesses, it is Dr. Piatt's "strong

opinion that any symptoms described by Mr. Terry are not asbestos related as concurrent

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 10 of 27

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symptoms are not associated with asbestos exposure." Id. at 5. Dr. Piatt also notes that several of

Mr. Terry's symptoms have other potential causes based on information in Mr. Terry's medical

records: Mr. Terry's eye problems may be related to pre-existing pterygium (i.e., an eye condition

that itself can cause redness, inflammation, and vision impairment); his complaints of foot pain

may be related to his pre-existing plantar fasciitis; and his respiratory complaints may be related to

him having had pneumonia and a Legionnaire's Disease-related lung infection. Id. Dr. Piatt

further states that "[n]o known link exists between asbestos and joint or bone pain," and that it is

"nearly impossible to conceive that abdominal pain, headache, and/or nausea ever would be due to

asbestos inhalation." Id. With regard to the claimed lead exposure, Dr. Piatt declares that, "[i]n

adults, lead inhalation rarely results in medical disease unless there is prolonged exposure to high

concentrations." Id. at 6. Mr. Terry's blood test showed the level of lead in his blood to be

"medically insignificant." Id. In Dr. Piatt's medical opinion, "Mr. Terry has and will sustain no

harm due to the lead or asbestos exposure he alleges." Id.

According to several government authorities, "medical science has not established any

minimum level of exposure to asbestos fibers which is considered to be safe to individuals

exposed to the fibers." 20 U.S.C. § 3601(a)(3) (Congressional statement of findings and purposes

for the Asbestos School Hazard Detection and Control Act of 1980); id. at § 4011 (a)(3)

(Congressional statement of findings and purpose for the Asbestos School Hazard Abatement Act

of 1984); "Asbestos NESHAP Adequately Wet Guidance," Office of Air Quality Planning and

Standards, U.S. Environmental Protection Agency, EPA340/1-90-019 (1990) at I ("no safe

concentration of airborne asbestos has ever been established"). "[E]xposure to asbestos fibers has

been identified over a long period of time and by reputable medical and scientific evidence as

significantly increasing the incidence of cancer and other severe or fatal diseases, such as

asbestosis." 20 U.S.C. § 3601(a)(1) (Congressional statement of findings and purposes for the

Asbestos School Hazard Detection and Control Act of 1980). Although making these findings

about the general hazard of asbestos, Congress did not choose to close all potentially affected

schools and instead directed that a task force be established, that States prepare plans, and that

financial and other assistance be provided to States to address the problem. See 20 U.S.C.

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Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 11 of 27

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allow some asbestos exposure for workers. One regulation sets a "permissible exposure limit" for

employee exposure to asbestos. See 29 C.F.R. § 1910.1001(c)(l) ("The employer shall ensure that

no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic

centimeter of air as an eight (8)-hour time-weighted average"); id. at § 1910. 1001 (c)(2) ("The

employer shall ensure that no employee is exposed to an airborne concentration of asbestos in

excess of 1.0 fiber per cubic centimeter of air (1 flcc) as averaged over a sampling period of thirty

(30) minutes").

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The Occupational Safety and Health Administration ("OSHA") has regulations that do

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§ 3601(b).

III.

VENUE AND JURISDICTION

Venue is proper in the Northern District of California because the events or omissions

giving rise to the claims occurred at San Quentin State Prison in Mann County, which is located

within the Northern District. See 28 U.S.C. §§ 84, 1391(b). The Court has federal question

jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.

IV. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is proper where the pleadings, discovery and affidavits show that there

is "no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(a). A court will grant summary judgment "against a party

who fails to make a showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.

failure of proof concerning an essential element of the nonmoving party's case necessarily renders

all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is

material if it might affect the outcome of the lawsuit under governing law, and a dispute about

such a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

since a complete

Generally, as is the situation with defendant's challenge to the Eighth Amendment claims,

the moving party bears the initial burden of identifying those portions of the record which

demonstrate the absence of a genuine di'spute of material fact. The burden then shifts to the

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 12 of 27

nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the 'depositions,

answers to interrogatories, or admissions on file,' designate 'specific facts showing that there is a

genuine issue for trial." Celotex, 477 U.S. at 324.

Where, as is the situation with defendants' qualified immunity defense, the moving party

bears the burden of proof at trial, he must come forward with evidence which would entitle him to

a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d

1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine dispute of fact on each

issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc.,

477 U.S. at 248. When the defendant-movant has come forward with this evidence, the burden

shifts to the non-movant to set forth specific facts showing the existence of a genuine dispute of

fact on the defense.

A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is

based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder

v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (treating plaintiff's verified complaint

as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746,

plaintiff stated under penalty of perjury that contents were true and correct, and allegations were

not based purely on his belief but on his personal knowledge). Mr. Terry's amended complaint

(i.e., Docket No. 11) is made under penalty of perjury and is considered in opposition to the

motion for summary judgment.

CI)

The court's function on a summary judgment motion is not to make credibility

determinations or weigh conflicting evidence with respect to a disputed material fact. See T W.

Elec. Serv. V. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence

must be viewed in the light most favorable to the nonmoving party, and inferences to be drawn

from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.

V. DISCUSSION

Eighth Amendment Claim

The Constitution does not mandate comfortable prisons, but neither does it permit

inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Deliberate indifference to an

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 13 of 27

•

inmate's health or safety may violate the Eighth Amendment's proscription against cruel and

unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the

Eighth Amendment only when two requirements are met: (1) the deprivation alleged is,

objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the

inmate's health or safety. See Farmer, 511 U.S. at 834.

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Asbestos

Objective Prong

Exposure to toxic substances may be a sufficiently serious condition to establish the first

prong of an Eighth Amendment claim, depending on the circumstances of such exposure, as

explained by the Supreme Court in Helling v. McKinney, 509 U.S. 25, 35 (1993) (inmate stated

Eighth Amendment claim based upon possible future harm to health, as well as present harm,

arising out of exposure to second-hand smoke). The plaintiff "must show that he himself is being

exposed to unreasonably high levels" of the toxic substance. Helling, 509 U.S. at 35. Moreover,

determining whether the condition violates the Eighth Amendment "requires more than a scientific

and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury

to health will actually be caused by exposure to [the toxic substance]. It also requires a court to

assess whether society considers the risk that the prisoner complains of to be so grave that it

violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other

words, the prisoner must show that the risk of which he complains is not one that today's society

chooses to tolerate." Helling, 509 U.S. at 36.

Although Helling was a second-hand smoke case, the rule also applies to asbestos

exposure. In Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995), the Ninth Circuit cited Helling in a

case in which an inmate had been exposed to asbestos during a prison cleaning operation. The

facts were much stronger for the plaintiff in Wallis than in Mr. Terry's case, as the Wallis plaintiff

extensively handled asbestos-containing materials when he was on a work detail required to clean

an attic with damaged asbestos-containing insulation on pipes and insulation material that "had

broken loose and lay scattered around the attic" with other debris. Id. at 1075. Wearing

inadequate masks, the inmates were required to "tear off loose pipe covering and insulation" and

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 14 of 27

bag it for disposal in a dusty attic without outside ventilation. Id. The court in Wallis spent little

time discussing whether the objective prong was satisfied for the Eighth Amendment claim

because it was "uncontroverted that asbestos poses a serious risk to human health," and the

plaintiff's medical expert had declared that the amount of exposure for that plaintiff was

"medically serious," id. at 1076.

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Other circuits also have cited Helling in cases involving toxic substances such as asbestos.

See, e.g., Templeton v. Anderson, 607 F. App'x 784, 787 (10th Cir. 2015) (summary judgment

proper for defendant because requiring inmate to work for one hour removing asbestos mastic and

tiles "was not a significant duration given the type of exposure at issue" and therefore did not

satisfy the objective prong of Eighth Amendment claim); Smith v. Howell, 570 F. App'x 762, 765

(10th Cir. 2014) (affirming summary judgment on qualified immunity grounds on Eighth

Amendment claim because there were no Tenth Circuit or Supreme Court cases by 2003 that had

held "that a limited exposure to asbestos dust for a few hours poses such an objectively serious

risk of future harm to offend contemporary standards of decency. Indeed there is no such

authority even today."); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). (there would be

genuine issues of fact whether plaintiff was exposed to levels of asbestos sufficient to pose an

unreasonable risk of damage to his future health based on his two-month stay in a facility

"contaminated with asbestos to which inmates were routinely exposed," but summary judgment

was proper because he alleged no physical injury and, pursuant to 42 U.S.C. § 1997e(e), he could

not recover damages for mental and emotional stress without physical injury); McNeil v. Lane, 16

F.3d 123, 125 (7th Cir. 1993) (Eighth Amendment claim properly dismissed because being housed

in a cell for ten months near asbestos-covered pipes was not a serious enough condition; plaintiff

"does not allege facts sufficient to establish that he was exposed to unreasonably high levels of

asbestos. Had, for example, [plaintiff] been forced to stay in a dormitory where friable asbestos

filled the air,

however, is not this case.

Exposure to moderate levels of asbestos is a common fact of contemporary life and cannot, under

contemporary standards, be considered cruel and unusual.")

. .

.we might agree that he states a claim under the Eighth Amendment.

. . .

That,

[T]he fact remains that asbestos abounds in many public buildings.

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 15 of 27

•

Mr. Terry fails to show a triable issue on the objective prong of his Eighth Amendment

claim. On the evidence in the record, no reasonable jury could find that Mr. Terry was "exposed

to unreasonably high levels" of a toxic substance. Helling, 509 U.S. at 35. Mr. Terry's only

evidence is that there was some unspecified amount of asbestos in the mattress factory and that a

power washer in use for at most eight work days disturbed pipe covering presumed to contain

asbestos. As noted above, the disturbances to the pipe covering appear to be minimal. And the

samples from floor debris taken shortly after the shutdown contained no asbestos. The only

asbestos found was non-friable. In contrast to Wallis, Mr. Terry fails to establish any evidence

that he was exposed to unreasonably high levels of a toxic substance. Indeed, Mr. Terry admitted

in his deposition that he does not know if he was exposed to any particular quantity of asbestos.

That the air in the factory was dusty provides little information about the quantity of asbestos

released because cotton dust was present before any disruption of the pipe covering: the surfaces

in the mattress factory had a cotton dust build-up that the workers were cleaning to get ready for

painting. There is no evidence the dust contained any asbestos, much less a dangerous amount of

asbestos.

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Mr. Terry appears at best to rely on a presumption that any exposure to asbestos is so grave

that it violates the Eighth Amendment, but that sort of generalized presumption does not satisfy

the standard set out in Helling. Mr. Terry fails to present evidence that would allow the Court or a

jury to do "a scientific and statistical inquiry into the seriousness of the potential harm and the

likelihood that such injury to health will actually be caused by exposure" to asbestos, as

contemplated by Helling, 509 U.S. at 36. Without such evidence, neither the Court nor any

reasonable jury could determine that the risk that Mr. Terry complains of is "so grave that it

violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id.

Although there are Congressional findings that "medical science has not established any minimum

level of exposure to asbestos fibers which is considered to be safe," 20 U.S.C. § 3601(a)(3), those

findings did not result in Congress deeming it necessary to shut down all schools because of the

possibility of asbestos; instead, Congress provided time for studying, planning and funding efforts

for asbestos remediation in schools. Similarly, an OSHA regulation identified by Defendants

Case 3:13-cv-01227-EMC Document 128 Filed 12/02116 Page 16 of 27

permits some small asbestos exposure, rather than forbids any and all exposure of workers to

I asbestos. See 29 C.F.R. § 1910.1001(c). The evidentiary void as to the science and statistics in

Mr. Terry's case is fatal to his case.

In addition to failing to show exposure to any measurable level of asbestos, Mr. Terry also

fails to establish a genuine issue for trial that he has suffered any current injury or has any

likelihood of future injury as a result of his participation in the mattress factory clean-up. No

medical expert declared that the amount of asbestos exposure for Mr. Terry (if any) was

"medically serious," unlike in Wallis, 70 F.3d at 1076. Mr. Terry's assertion to the contrary

cannot sustain his claim; he has no medical training, and offers nothing but speculation that his

current ailments are causally related to the toxic substance exposure. In contrast to the dearth of

evidence from Mr. Terry, Defendants present an undisputed medical expert declaration that (a)

none of Mr. Terry's reported current ailments are causally related to his asbestos exposure, (b)

asbestos-related diseases usually have a long latency period such that the diseases would not be

expected to develop for many years, and (c) asbestos-related diseases usually require significant

and prolonged exposure to asbestos. Cf Nguyen v. Biter, 2015 WL 5232163, *6 (E.D. Cal.

Sept. 8, 2015) (in prisoner action complaining that drinking water contained arsenic, defendants

entitled to summary judgment on objective prong of Eighth Amendment claim because, although

there was arsenic in the local drinking water, plaintiff provided no scientific evidence that the

arsenic was present in sufficient amounts to cause the skin and other conditions he complained of

and there was no medical evidence that his conditions were specific to arsenic exposure).

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At first blush, one might think today's determination that there is no triable issue on the

objective prong is inconsistent with the Court's finding of a triable issue on the objective prong

many months ago in the Carter case about the same mattress factory cleanup. The two decisions

are not inconsistent for at least three reasons. First, there are now color photos in the record that

literally and figuratively give a clearer picture of the situation.3 See Docket No. 90 at 21-28;

Photos had been submitted earlier in this case, but none were of a quality that allowed any

insight into the scope of the incident. For example, Plaintiff submitted copies of photos of pieces

of equipment found in the factory, but those allow no insight as to what the factory or pipes looked

like. See Docket No. 1-1 at 35-45, Docket No. 11 at 54-61, and Docket No. 19 at 59-68. The

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Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 17 of 27

Docket Nos. 90-1, 90-2, 90-3. The photos submitted by Mr. Terry plainly show that any asbestos

release

ceilings, and a limited number of pipes near those ceilings, only some of which had any damage at

all to the pipe wrapping. The damaged areas are quite confined and spaced far apart. See Docket

No. 90 at 21-28, Docket Nos. 90-1, 90-2, and 90-3. Those photos plainly show that the situation at

the mattress factory was dramatically different from the situation described in Wallis. Whereas in

Wallis, the plaintiff directly and extensively handled asbestos in a closed and dusty attic, the

release of asbestos here, if any, was incidental, isolated, and occurred in a large and open factory.

Prior to submission of these color photos, the court was left guessing as to how much damage was

done to an unknown number of pipes in an ill-defined environment. The photos now make clear

that the situation was far different from the asbestos blizzard in Wallis. Cf Scott v. Harris, 550

U.S. 372, 380-83 (2007) ("[w]hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.")

Second, defendants point out that an OSHA regulation sets limits on asbestos exposure and allows

some small exposure to asbestos for workers. The regulation undermines any suggestions that

each and every contact with asbestos fibers presents an unacceptable danger to human health.

Since OSHA allows the free American work force to work in areas with some amount of asbestos

fibers being present in the air and Congress essentially allowed children to remain in schools with

asbestos being present, one cannot say that exposure of a prisoner to any amount of asbestos, no

matter how small the amount, offends contemporary standards of decency. Mr. Terry's assertion

to the contrary cannot be sustained. Third, Defendants now present a medical expert's declaration

refuting any causal connection between the claimed asbestos exposure and Mr. Terry's present

ailments and any risk of future asbestos-related illnesses. Mr. Terry presents no competent

evidence to the contrary.

assuming (as the asbestos abatement company did) that the pipe covering had asbestos in

would have been extremely limited. The photos show an open factory environment, high

photos Mr. Terry provided that might be of the factory were too dark to be helpful. See Docket

No. 40 at 8-9; Docket No. 52 at 61; Docket No. 53 at 56 (same photo as Docket No. 52 at 61).

•

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 18 of 27

reasonable jury could find that he was exposed to an unacceptably high level of asbestos. His

claim fails on the objective prong.

Viewing the evidence and inferences therefrom in the light most favorable to Mr. Terry, no

Subjective Prong

The plaintiff must show that prison officials acted with deliberate indifference to the risk to

his health or safety to establish the second prong of an Eighth Amendment claim. Under the

deliberate indifference standard, the prison official must not only "be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists," but "must also draw

the inference." Farmer, 511 U.S. at 837. The prisoner "need not show that a prison official acted

or failed to act believing that harm would befall an inmate; it is enough that the official acted or

failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. "Whether a

prison official had the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, includ ng nference from circumstantial evidence,.. and a

factfinder may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious." Id. (citation omitted).

C.)

CO)

Mr. Earley and Mr. Loredo prevail on the subjective prong (as well as the objective prong)

of the Eighth Amendment claim with regard to the asbestos exposure. For Mr. Earley and Mr.

Loredo, the only evidence regarding their knowledge is that they generally were aware that

asbestos existed at San Quentin, although they did not know the precise locations of the asbestos.

Mr. Loredo also knew some of the pipes in the furniture factory had asbestos wrapping, but did

not know whether the mattress factory pipes also had asbestos wrapping. More importantly, there

is no evidence that Mr. Earley or Mr. Loredo knew that the mattress factory cleaning work would

include power washing the ceiling and pipes. In light of the absence of evidence that these two

defendants knew that there was asbestos wrapping on the pipes and the absence of evidence that

these two defendants knew that the asbestos-wrapped pipes would be power washed and subject to

damage which allegedly released asbestos, no reasonable jury could conclude that these two

defendants acted with deliberate indifference to a serious risk to Mr. Terry's health.

The analysis for Mr. Dobie and Mr. Young on the objective prong is different, because Mr.

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 19 of 27

Terry presents evidence that they actually knew of the asbestos in the mattress factory and

nonetheless required inmates to work in a manner that could and did disrupt that asbestos. Mr.

Terry presents evidence that: (a) Mr. Dobie and Mr. Young were informed by inmate Beyett of

lead paint and asbestos in the mattress factory and specifically about the damage of power

washing asbestos-wrapped pipes two weeks before the work was stopped; (b) Mr. Dobie and Mr.

Young were aware that the power washer was being used floor to ceiling as it occurred, according

to Mr. Young's memorandum; (c) new employees were informed that asbestos-covered pipes were

located throughout the PIA complex and were instructed not to disturb those pipes; and (d) all

defendants knew there was at least some asbestos at San Quentin. Cf Wallis, 70 F.3d at 1077 ("it

is not enough for the prison officials to claim they did not know about the asbestos in the attics.

The existence of the asbestos assessment report, the fire marshal's order to clean the debris off the

pipes, and the various prison officials' testimonies that they knew or suspected the existence of

exposed asbestos created an obligation for the defendants to inspect the atti'cs prior to sending

work crews into them for forty-five hours

Dobie and Mr. Young knew that the pipe covering would be severely and pervasively damaged in

a manner that would expose Mr. Terry and others to an unreasonable level of exposure to asbestos.

Indeed, the fact that there is no evidence of such exposure undercuts Mr. Terry's claim on the

subjective prong as to these defendants.

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unprotected.") However, there is no evidence that Mr.

In any event, even if there were a triable issue as to Mr. Dobie and Mr. Young on the

subjective prong given the alleged warning by inmate Beyett, Mr. Terry must raise a triable issue

on both the subjective and the objective prongs for his Eighth Amendment claim to survive

summary judgment. As discussed in the preceding section, Mr. Terry does not show a triable

issue on the objective prong as to any defendant.

Mr. Terry fails to establish, or show a genuine issue for trial, that the lead paint to which he

Lead Paint

was exposed presented a sufficiently serious condition to satisfy the first prong of an Eighth

Amendment claim. He presents evidence that some of the paint in the mattress factory contained

lead, that he scraped and sanded paint during the mattress factory clean-up, and that the N95 mask

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 20 of 27

made available to him was not intended for use with lead. However, the undisputed evidence is

that his blood was tested for lead, and the blood test came back with a normal result. No evidence

was presented that the amount of lead in a person's blood will increase after the lead exposure is

terminated; in other words, there is no evidence that a person who has normal levels of lead in his

blood after his exposure to the lead ends will later have abnormally elevated levels of lead in his

blood. Given that the only objective measure of lead exposure came back showing normal results,

no reasonable jury could conclude that the risk posed by the lead paint was "so grave that it

violates contemporary standards of decency to expose anyone unwillingly to such a risk."

Helling, 509 U.S. at 36.

The causation requirement has been treated as part of the subjective prong of the Eighth

Amendment analysis by the Ninth Circuit in Jett v. Penner, 439 F.3d 1091, 1097 (9th Cir. 2006)

("This second prong

0-8

by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need

and (b) harm caused by the indifference").4 However, causation "also comes into play as to the

objective component" of a claim based on exposure to a toxic substance because the objective

prong "allows a court to consider, among other things, a 'scientific and statistical inquiry into the

seriousness of the potential harm and the likelihood that such injury to health will actually be

caused by exposure to [a substance]." Moore v. Faurquire, 595 F. App'x 968, 973 n.6 (11th Cir.

2014). For example, in Moore, the court found that a prisoner failed to raise a triable issue on the

objective prong because he presented no evidence that applying paint stripper while wearing

inadequate protective gear for one week created a substantial risk of serious harm: his "medical

records contain no evidence that such a limited exposure to the paint stripper was capable of

causing" the health problems he attributed to the exposure. Id. at 973. See, e.g., Maus v. Murphy,

29 F. App'x 365, 369 (7th Cir. 2002) (plaintiff "cannot prevail by demonstrating that the cell-front

construction merely exposed him to a risk of harm; instead he must show that the project actually

defendant's response to the need was deliberately indifferent

is satisfied

If there is an ongoing risk, the prisoner need not await until harm is caused to him before

obtaining injunctive relief. See Farmer, 511 U.S. at 845. Here, there is not an ongoing problem

from which the plaintiff seeks injunctive relief, but instead a past problem for which he seeks

damages. Mr. Terry no longer works in the mattress factory.

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 21 of 27

caused him harm or was reasonably certain to cause him future serious injury," but plaintiff had

failed to "present evidence connecting lung complications to any risks associate with exposure to

lead paint"); Mejia v. McCann, 2010 WL 5149273, *8.*9 (N. D. Ill. 2010) ("existence of lead

paint on walls does not state a viable constitutional claim," and there was no "competent evidence

that lead paint in his celihouse has caused [plaintiff] injury").

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Mr. Terry fails to show a triable issue in support of his Eighth Amendment claim. There is

a test for lead exposure, and Mr. Terry had a normal test result. A reasonable jury could not

ignore that the blood test showed no harm to Mr. Terry when deciding whether Mr. Terry had

raised a triable issue on the objective prong of his Eighth Amendment claim. Given the limited

duration of his exposure to lead and the normal blood test results, a reasonable jury could not find

that he was exposed to a risk "so grave that it violates contemporary standards of decency to

expose anyone unwillingly to such a risk." Helling, 509 U.S. at 36. Mr. Terry has not shown any

expertise in the diagnosis of medical conditions and any claimed causal link between the lead

exposure and any ailment he has is pure speculation in view of the normal blood test results. See,

e.g., Mejia v. McCann, 2010 WL 5149273, *9-* 10 (summary judgment granted for defendants on

Eighth Amendment claim based on the regional problem of radium in the water because plaintiff

did not show it caused plaintiff any harm, and his allegations that he suffered dry scalp and hair

loss that he did not have before incarceration was not sufficient to send the matter to trial). Mr.

Terry's claim falters on the objective prong of his Eighth Amendment claim for lead exposure.

Mr. Terry's lead exposure claim also fails on the subjective prong. As to Mr. Earley and

Mr. Loredo, viewing the evidence in the light most favorable to Mr. Terry, no reasonable jury

could find that those defendants were deliberately indifferent to any risk posed by lead paint. Mr.

Terry presents no competent evidence that Mr. Earley or Mr. Loredo was aware that there was

lead paint in the factory or that either was aware that the inmates would be scraping lead paint in

the factory cleaning operations. The undisputed evidence is that these two defendants did not

know of the lead paint, and without an awareness of the risk, they cannot be said to have been

deliberately indifferent to any risk posed by it. The lead paint claim would not fail on the

subjective prong as to Mr. Dobie and Mr. Young because Mr. Terry presented evidence they were

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 22 of 27

informed by Mr. Beyett of the presence of lead paint. Finally, if as Jett suggests, causation is part

of the subjective prong of the Eighth Amendment analysis, Mr. Terry's claim fails against all

Defendants because there is a complete absence of evidence that their actions or inactions with

regard to the lead paint caused him any harm or risk of future injury.

fact as to the existence of both prongs of his Eighth Amendment claims. Viewing the evidence

and reasonable inferences therefrom in the light most favorable to Mr. Terry, all Defendants are

entitled to judgment in their favor on his Eighth Amendment claim based on his alleged exposure

to asbestos and lead.

In order to avoid summary judgment, Mr. Terry had to establish or show a triable issue of

Qualified Immunity

The defense of qualified immunity protects "government officials.

from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-

pronged test to determine whether qualified immunity exists. First, the court asks: "Taken in the

light most favorable to the party asserting the injury, do the facts alleged show the officer's

conduct violated a constitutional right?" Id. at 201. If no constitutional right was violated if the

facts were as alleged, the inquiry ends and defendants prevail. See id. If, however, "a violation

could be made out on a favorable view of the parties' submissions; the next, sequential step is to

ask whether the right was clearly established.... 'The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.'

relevant, dispositive inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted." Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although

Saucier required courts to address the questions in the particular sequence set out above, courts

now have the discretion to decide which prong to address first, in light of the particular

circumstances of each case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

. . .

The

The existence of a triable issue as to whether a prison official was deliberately indifferent

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 23 of 27

to an inmate's health or safety may require denial of a defense motion for summary judgment on

the merits of the Eighth Amendment claim, but the qualified immunity analysis does not end there.

See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002); see id. at 1049

("Saucier 's key point is that the qualified immunity inquiry is separate from the constitutional

inquiry"). "Even though the constitutional issue turns on the officers' state of mind (here,

deliberate indifference to a substantial risk of serious harm), courts must still consider whether

assuming the facts in the injured party's favor

conduct was unlawful." Estate of Ford, 301 F.3d at 1045. That is, the court must consider

whether the information available to the defendants made it so clear that the plaintiff would be

harmed that no reasonable officer could have allowed the situation to occur. Id.

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it would be clear to a reasonable officer that his

For an Eighth Amendment violation based on a condition of confinement (such as a safety

risk), the official must subjectively have a sufficiently culpable state of mind, i.e., "the official

must both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.'

understanding that he cannot recklessly disregard a substantial risk of serious harm, could know

all of the facts yet mistakenly, but reasonably, perceive that the exposure in any given situation

was not that high. In these circumstances, he would be entitled to qualified immunity." Estate of

Ford, 301 F.3d at 1050 (quoting Farmer v. Brennan, 511 U.S. at 834, and citing Saucier, 533 U.S.

at 205). Although the general rule of deliberate indifference had been expressed in Farmer, no

authorities had "fleshed out 'at what point a risk of inmate assault becomes sufficiently substantial

for Eighth Amendment purposes." Estate of Ford, 301 F.3d at 1051 (quoting Farmer, 511 U.S. at

834 n.3). Because it had not been fleshed out, "it would not be clear to a reasonable prison official

when the risk of harm from double-celling psychiatric inmates with one another changes from

being a risk of some harm to a substantial risk of serious harm. Farmer left that an open issue.

This necessarily informs 'the dispositive question' of whether it would be clear to reasonable

correctional officers that their conduct was unlawful in the circumstances that [they] confronted."

Estate of Ford, 301 F.3d at 1051 (emphasis in original). Each of the defendants in Ford was

entitled to qualified immunity even though he was aware of some information that there was

Thus, a reasonable prison official

Case 3:13-cv-01227-EMC Document 128 Piled 12/02/16 Page 24 of 27

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some risk in double-ceiling the violent inmate with the decedent or any other inmate.

Just as qualified immunity was allowed in Estate of Ford because of the undefined

qualitative elements, qualified immunity is appropriate here because of the undefined qualitative

elements in Helling. Cf. A.D. v. California Highway Patrol, 712 F.3d 446, 455 n.4 (9th Cir. 2013)

(denying qualified immunity for a substantive due process claim; "[t]he standard for a due process

violation

undefined qualitative elements ("substantial risk" and "serious harm") like the Eighth Amendment

standard does."). Helling stated that whether exposure to "unreasonably high levels" of a toxic

substance violates the Eighth Amendment "requires more than a scientific and statistical inquiry

into the seriousness of the potential harm and the likelihood that such injury to health will actually

be caused by exposure to [the toxic substance]. It also requires a court to assess whether society

considers the risk that the prisoner complains of to be so grave that it violates contemporary

standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner

must show that the risk of which he complains is not one that today's society chooses to tolerate."

Helling, 509 U.S. at 36. This imprecise rule is the sort of rule that lower courts sometimes have to

struggle with to determine its application to a given set of circumstances.

purpose to harm unrelated to a legitimate law enforcement objective

does not contain

The cases mentioned earlier show that not all exposure to asbestos amounts to an

objectively serious conduct, and that no court has articulated a well-defined test that a reasonable

prison official could look to in order to determine the lawfulness of his actions. On the one hand,

Wallis found an Eighth Amendment violation for an inmate who directly handled already-

damaged asbestos containing materials in a confined space for about 45 hours. On the other hand,

courts have rejected claims of Eighth Amendment violations from an inmate who worked for

about an hour removing asbestos mastic and tiles (Templeton v. Anderson), an inmate who was

exposed to asbestos dust for a few hours (Smith v. Howell), and an inmate who was housed for ten

months near asbestos-covered (but undisturbed) pipes (McNeil v. Lane). The fact that lower courts

have reached different results in determining whether exposure to a given toxic substance is an

unreasonably high level so as to amount to an objectively sufficient serious condition highlights

the difficulty that a reasonable prison official would have in determining whether his conduct was

Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 25 of 27

unlawful when inmates are exposed to or work with toxic substances. The same problem exists

for lead paint

in order to determine the lawfulness of his actions in allowing prisoners to deal with lead paint.

Defendants are entitled to qualified immunity against Mr. Terry's claims that they were

deliberately indifferent based on the asbestos and lead exposure because, as discussed above, the

facts in the record do not show the violation of a constitutional right by them. See Saucier, 533

U.S. at 201 (defendants prevail on qualified immunity if there was no constitutional violation).

The undefined contours as to what amounts to "unreasonably high levels," Helling, 509 U.S. at 35,

of a toxic substance (such as asbestos or lead) to satisfy the objective prong of an Eighth

Amendment analysis also provides a second and independent basis for qualified immunity as to

Mr. Terry's claims. Under the facts of this case, given the minimal, if any, exposure to lead and

asbestos in the mattress factory, the defendants could have believed reasonably and mistakenly

that the risk was not sufficiently substantial to violate the Eighth Amendment. This is not a case

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like Wallis, where there was prolonged and intense exposure to friable asbestos.

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no court has articulated a well-defined test that a reasonable official could look to

State Law Claims

Mr. Terry contends that Mr. Earley and Mr. Loredo "attempted to minimize the severity of

the exposure by failing to disclose/enter onto the Workers' Compensation forms exposure to

asbestos." Docket No. 11 at 4. Mr. Terry believed at the relevant time that he had been exposed

to asbestos, yet he indisputably did not attempt to file a second workers' compensation claim to

add asbestos exposure to the list of alleged workplace injuries he suffered during the relevant time.

Defendants persuasively argue that any state law claims Mr. Terry is attempting to allege

in his amended complaint must be dismissed. First, the workers' compensation scheme in

California Labor Code sections 3370 and 3601 is the exclusive remedy for injuries arising out of

the course and scope of employment. See Cal. Lab. Code §§ 3600, 3602; Cole v. Fair Oaks Fire

Protection Dist., 43 Cal. 3d 148, 155-57 (Cal. 1987); see also Jirneno v. Mobil Oil Corp., 66 F.3d

1514, 1530 (9th Cir. 1995) ("we find that the California workers' compensation provisions

provide the exclusive remedy under California law for a work-related physical disability

discrimination claim"). The exclusive remedy provided by the California workers' compensation

Case 3:13-cv-01227-EMC Document 128 Piled 12/02/16 Page 26 of 27

•-

scheme also precludes an action against another employee except in two circumstances not alleged

to be present here, i.e., intoxication or a "willful and unprovoked physical act of aggression of the

other employee." Cal. Lab. Code § 3601 (a)(1).

Second, insofar as Mr. Terry is alleging a claim of intentional concealment or fraud in the

preparation of the worker's compensation claim form that might not fall within the exclusive

remedy of the worker's compensation scheme, such a claim must be dismissed because Mr. Terry

indisputably failed to comply with the California Government Claims Act, which requires

presentation of the claim to the California Victim Compensation and Government Claims Board

("Board"). See Cal. Gov't Code §§ 905.2, 911.2, 945.4, 950.2. Mr. Terry had to present his

personal injury tort claim against a state employee or entity to the Board within six months of the

accrual of the cause of action, and had to present any claim relating to any other cause of action

within a year after the accrual of the cause of action. See Cal. Gov't Code § 911.2. Timely claim

presentation is "a condition precedent to plaintiff's maintaining an action against [a state employee

.26

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or entity] defendant." California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240 (Cal.

2004). It is undisputed that Mr. Terry did not present a claim to the Board that mentioned any

intentional concealment or fraud in the preparation of the worker's compensation claim form. The

claim that Mr. Terry did present asserted only lead and asbestos exposure claims, and did not

mention any misrepresentation or other problem with the preparation of the worker's

compensation claim form. See Docket No. 33-1 at 6-10. Therefore, any state law claim that is not

barred by the rule that the workers' compensation scheme is the exclusive remedy must be

dismissed because Mr. Terry did not comply with the claim-presentation requirement of the

California Government Claims Act. The state law claims are dismissed.

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Case 3:13-cv-01227-EMC Document 128 Filed 12/02/16 Page 27 of 27

VI. CONCLUSION

For the foregoing reasons, the motion for summary judgment filed by Jeremy Young is

GRANTED, and the motion for summary judgment filed by Joe Dobie, Phillip Earley and Gary

Loredo is GRANTED. (Docket Nos. 106, 107.) The Clerk shall close the file.

IT IS SO ORDERED.

Dated: December 2, 2016

United States District Judge

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Case 3:13-cv-01227-EMC Document 128-1 Filed 12/02/16 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEWEY TERRY,

Case No. 13-cv-O 1227-EMC

Plaintiff,

CERTIFICATE OF SERVICE

BRAD SMITH, et al.,

Defendants.

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

District Court, Northern District of California.

C.')

That on 12/2/2016, I SERVED a true and correct copy(ies) of the attached, by placing said

copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing

said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle

located in the Clerk's office.

Dewey Terry ID: D08191

San Quentin State Prison

San Quentin, CA 94974

Dated: 12/2/2016

Susan Y. Soong

Clerk, United States District Court

By: Leni Doyle-Hickman, Deputy Clerk to the

Honorable EDWARD M. CHEN

Case 3:13-cv-01227-EMC Document 129 Filed 12/02/16 Page 1 of 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEWEY TERRY,

Case No. 13-cv.01227-EMC

Plaintiff,

JUDGMENT

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BRAD SMITH, et al.,

Defendants.

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Judgment is now entered in favor of Defendants and against Plaintiff.

IT IS SO ORDERED AND ADJUDGED.

Dated: December 2, 2016

United States District Judge

Additional material

from this fil16ing I s

avai lable in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.